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Schell v. Oxy USA Inc.

United States District Court, Tenth Circuit

September 11, 2013

DAVID AND DONNA SCHELL, AND RON OLIVER, INDIVIDUALLY, AND AS REPRESENTATIVE PARTIES ON BEHALF OF SURFACE OWNERS, Plaintiffs,
v.
OXY USA INC., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

On March 26, 2013, the court granted summary judgment to the plaintiffs in this case. See Dkt. 155. However, the court must decide whether to enter judgment on behalf of the plaintiff class or merely on behalf of the individual plaintiffs. The court has before it defendant OXY USA Inc.'s Motion to Decertify Class Action (Dkt. 145) and the plaintiff class's Motion to Strike OXY's Motion (Dkt. 146). Additionally, plaintiffs seek permission for leave to file a surreply to OXY's Motion. See Dkt. 186. The court is prepared to rule. Prior orders have already sufficiently set out the relevant background in this case.

I. Motion to Strike

The plaintiffs seek an order striking OXY's Motion to Decertify, arguing that OXY's motion is beyond the limited scope the court has set for permissible litigation. The court denies the motion to strike as improper. The plaintiffs misinterpret this court's authority to strike under the Federal Rules of Civil Procedure. They properly quote Rule 12(f) as permitting the court to strike a pleading to remove redundant or immaterial clutter from the case, but they have not asked the court to strike a pleading at all. Rather, the plaintiffs seek an order striking a motion. Under Rule 7(a), motions are not included in the definition of a pleading, so Rule 12(f) provides no basis for the court to strike a motion. See Schmitt v. Beverly Health and Rehabilitation Servs, Inc., 96-2537-EEO, 1997 WL 728133, at *1 (D. Kan. Nov. 19, 1997). Accordingly, the court denies the motion.

II. Motion to File Surreply

The plaintiffs have filed a Motion for Leave to File Surreply. In responding to this motion, OXY made its own request to file a brief addressing new authority raised by the plaintiffs in their proposed surreply. OXY did not oppose the plaintiffs' motion to file a surreply, and the plaintiffs have assured the court they will not seek leave to file any further briefs.

The rules of this court do not provide for the filing of surreplies. See generally D. Kan. Rule 7.1. The District of Kansas has a long-standing rule that a party may not file a surreply without first obtaining leave of the court. Humphries v. Williams Nat. Gas Co., No. 96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998). The court reserves leave to file a surreply for rare circumstances, such as when "a movant improperly raises new arguments in a reply...." EEOC v. International Paper Co., No. 91-2017-L, 1992 WL 370850, at *10 (D. Kan. Oct. 28, 1992).

In arguing that they should be allowed to file a surreply, the plaintiffs note that OXY's reply asserts arguments based on Roderick v. XTO Energy, Inc., No. 12-3176, 2013 WL 3389469 (10th Cir. July 9, 2013), a case that was decided after the plaintiffs filed their response brief on July 1. Similarly, OXY argues that the plaintiffs' proposed surreply asserts arguments based on Fawcett v. Oil Producers, Inc. of Kansas, No. 108, 666, 2013 WL 3778132 (Kan.Ct.App. July 19, 2013), a case that was decided after OXY filed its reply brief on July 15.

The court accepts both the plaintiffs' surreply and OXY's response to the surreply. The U.S. Court of Appeals for the Tenth Circuit decided a case that is important to the decertification motion before the court, and the opinion's timing was such that OXY was able to use it in its reply brief. The court gives the plaintiffs an opportunity to address this new case law. Likewise, the plaintiffs' proposed surreply bases a substantive argument on a case the Kansas Court of Appeals decided after OXY had filed its reply. This court allows OXY to address this new case as well.

The court finds these circumstances are of the rare type that justify granting both sides leave to file their additional briefs. Accordingly, the court considers the additional briefs in deciding the decertification motion.

III. Motion to Decertify

Federal Rule of Civil Procedure 23 sets forth the standards for certifying a class action and requires that all four prerequisites of Rule 23(a) and at least one of the three requirements of Rule 23(b) are satisfied. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); In re Integra Realty Res., Inc., 354 F.3d 1246, 1262 (10th Cir. 2004). The trial court has broad discretion in determining whether to certify a class. Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir. 2003). To grant class certification, the court must conduct a rigorous analysis that may overlap with the merits of the movant's underlying claims. Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (citing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011)). The party moving for class certification must clearly satisfy the requirements of Rule 23. See Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). Merely alleging that the prerequisites are met is insufficient to satisfy this burden. Dukes, 131 S.Ct. at 2551. The moving party must "affirmatively demonstrate" that the prerequisites for Rule 23 exist "in fact." Id. The court should accept the allegations in the complaint as true, although it "need not blindly rely on conclusory allegations which parrot Rule 23 requirements [and] may... consider the legal and factual issues presented by plaintiff's complaints." J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n. 7 (10th Cir. 1999).

In their motion to certify the class, the plaintiffs described the proposed class as follows: "All surface owners of Kansas land burdened by oil and gas leases owned or operated by OXY USA, Inc. which contain a free gas clause." This court granted the motion to ...


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